Constitutional Regulation of the Police in 2020

What should constitutional regulation of the police look like in 2020? One way to think about that question is to ask how things have changed since the 1960s, when modern constitutional criminal procedure began. To a surprising degree, criminal procedure today still operates within the framework constructed by the Warren Court: the doctrine mainly consists of elaborations, extensions, limitations, and modifications of Mapp v. Ohio, Miranda v. Arizona, Katz v. United States, and Terry v. Ohio. All of these cases responded to the challenges of the times, as the Court perceived them, and the oldest of the series—Mapp v. Ohio—turns fifty next year. So now is a good time to take stock.

The challenges to which Mapp, Miranda, Katz, and Terry responded had to do with the emergence of modern, professional police forces, and with some particular pathologies to which those organizations seemed prone. American police departments in 1960 were overwhelmingly white and overwhelmingly male, and to many outside observers they looked racist, lawless, insular, and hostile to democratic values. As the decade wore on the demographics of the occupation hardly changed, and the racism, lawless, insularity and hostility appeared, if anything, to worsen. In the rural South the police seemed a vestige of Jim Crow; in inner cities, northern and southern, the police seemed, increasingly, like an army of occupation. Those were the problems that constitutional criminal procedure was designed to address. The Court was trying to bring police departments under the rule of law, to penetrate the insular, politically reactionary culture of American law enforcement, and to protect African-Americans and other marginalized groups against police oppression.

Half a century later, the police are vastly better. They are more diverse, more sophisticated, more tolerant, less insular, less racist, and more committed to the rule of law. Criminal procedure law itself can take credit—although it had some help from affirmative action decrees that opened up police department hiring and promotion, from civilian oversight boards that accustomed the police to accountability, and from the growing political empowerment of African-Americans and other racial minorities. It shouldn’t need pointing out (but it often does) that the original agenda of constitutional criminal procedure is far from completely realized. Lots of what the police do has remained (and much of must remain) discretionary. More disturbingly, the police can still be a flashpoint for interracial conflict, partly because the Court has failed, in some notorious ways, to follow through on its commitment to make law enforcement evenhanded. But it no longer makes sense, as it once may have, to think that from the standpoint of race relations the police sometimes do their best work when they fail to show up.

There has also been a less obvious change. Fifty years the police had a de facto monopoly on crime control and order maintenance, and crime control and order maintenance were pretty much all they wanted to do. So constitutional criminal procedure could, and did, treat policing as a distinct social function carried out by a distinct set of organizations that stuck to its specialty. Today, though, the police share crime fighting and order maintenance duties with a proliferating array of public and private agencies, and the boundaries are blurring between policing and a range of other things—immigration enforcement, probation and parole supervision, mental health policy, family law, and school discipline, for starters. It’s less and less feasible to treat police work as a world unto itself.

The lessons for constitutional criminal procedure are several. First, issues of race in policing remain fraught and pressing. We could use a renewed commitment to that part of the Warren Court’s criminal procedure agenda. Second, though, there’s been enough progress, on that front and others, to make inequality in the provision of policing increasing important. It’s a more and more glaring failure of our constitutional discourse that we lack even the most rudimentary idea of a right, judicially enforceable or not, to minimally adequate protection against private violence. Third, we need ways to think about and to address the blurred boundaries between law enforcement on the one hand and, on the other hand, the growing range of other agencies and governmental functions that pool their resources and their legal powers with the police. That is a large challenge and, unfortunately, one for which existing doctrine offers little help.

David Sklansky is Yosef Osheawich Professor of Law at the University of California at Berkeley, School of Law. You can reach him by e-mail at dsklansky at law.berkeley.edu